The judgment handed down in the Ben Roberts-Smith trial could be appealed within weeks, despite a “complete win” for the media companies accused of defaming him.
The decorated war veteran lost his defamation case against the Nine newspapers on Thursday, as Justice Anthony Besanko ruled imputations put forward across eight articles by The Sydney Morning Herald, The Age and The Canberra Times were found to be substantially true, or that the newspapers had established contextual truth, meaning those imputations not found substantially true did not further harm Mr Roberts-Smith’s reputation.
The proceedings were officially dismissed, after Justice Besanko found the articles proved some, not all, of the defamatory imputations, in a major win for the newspapers.
Justice Besanko held the newspapers had proved true imputations that Mr Roberts-Smith was a murderer and a war criminal in his conclusions.
However, there is “a little bit more tennis to be played” according to senior lawyer Kevin Lynch.
“Importantly, we also heard from Mr Moses, who is senior counsel for the [Mr Roberts-Smith] and he said, “Do have additional time to put on appeal?” Mr Lynch told 7 News.
“That’s a pretty clear signal to the judge that this may not be over yet.
“We have a party who has been unsuccessful, already talking about appeal.”
If Mr Roberts-Smith and his lawyers decide to pursue an appeal, it would not automatically make it all the way to the High Court, according to Mr Lynch.
“It would need to go to the full Federal Court in the first instance, because being in the federal court system, the next step is to go to the Full Bench of the Federal Court, and the High Court would only be engaged in a matter like this if they saw problems with the findings in the courts below,” he said.
“So there’s no automatic right to go the High Court and would need to be something that’s pursued further on down.”
After the civil findings were handed down in the defamation matter, the possibility of a criminal trial was flagged by defence expert and former politician Martin Hamilton-Smith.
“As has been pointed out, there may well be an appeal, so I don’t think this is over yet, but the sooner we get to the real truth of matters through any proceedings, the better. I hope that the office of the special investigator just simply gets on with it, so we can get through that and move on.”
Mr Roberts-Smith’s actions on the mission to Whiskey 108 on Easter Sunday in 2009 were found to be substantially true by Justice Besanko. The 44-year-old is said to have allegedly “frog marched” a man with a prosthetic leg out of a secret tunnel at the compound.
He has been found by the court to have shot the man with a machine gun in the back.
Justice Besankso also found the murder of Ali Jan at Darwan in September 2012, where Mr Roberts-Smith allegedly kicked the detained shepherd off a cliff while handcuffed, to be substantially true.
It is alleged Mr Roberts-Smith marched the farmer to the edge of a 10-metre-high cliff, before kicking him onto a dry riverbed below.
The articles allege the farmer was then dragged to a cornfield and shot by Mr Roberts-Smith or another soldier called Person 11. The killing was likened to the movie 300 in which a Spartan warrior kicks an enemy into an abyss.
“The applicant’s conduct and actions on the mission to W108 has found means that the respondents have established the substantial truth of imputations two, three, four, five, six and nine,” Justice Besanko told the court.
“The applicant’s conduct and actions to the mission to Darwan has found means that the respondents have established the substantial truth of imputations one, two and three.”
The judgments were described as a “complete win for the media defendants” by Mr Lynch.
“On the balance of probabilities, and to speak in general terms, it was established that Ben Roberts-Smith committed unlawful murders on a number of occasions,” Mr Lynch said.